The American public is witnessing a fascinating, even historic, event: the Obama Administration's attempt to suppress basic expressions of religious faith.

The Department of Health and Human Services (HHS)'s recent rulemaking mandating that church-sponsored and affiliated enterprises that provide health insurance must also provide contraception coverage audaciously defies the religious liberty predicate that this nation is founded upon. It furthermore threatens our long-held belief that all Americans may worship and serve God free from governmental interference.

It also is a direct violation of the First Amendment.

Background

Last month, HHS finalized a rule under the Patient Protection and Affordable Care Act – more commonly known as ObamaCare – that will require most health insurance plans to cover all FDA-approved contraceptive and sterilization services without charging a co-pay, co-insurance or a deductible.1 Because the FDA has approved "contraceptive" or "morning-after" drugs like Plan B, Next Choice, and Ella, federal regulations will soon require virtually all employer-provided health insurance plans to pay for contraception, sterilization procedures, and early abortifacients. Religious and pro-life organizations are understandably alarmed by this ill-conceived measure.2

In announcing the mandate, HHS paid lip service to religious liberty and the freedom of conscience as it tried to "strike the appropriate balance between respecting religious freedom and increasing access to important preventative services," and even suggested that the "rule will have no impact on the protections that existing conscience laws and regulations give to health care providers."3 But such assurances are cold comfort when the rule and its smattering of exemptions are examined more closely.

To be sure, the new mandate includes an exception for insurance plans offered by "religious employers," but as Notre Dame law professor Richard Garnett observed, this exemption is "so stingy as to be nearly meaningless. It does nothing for individuals or insurers, and it applies only to employers whose purpose is 'the inculcation of religious values' and that hire and serve primarily those of the same religious faith."4 Thus, because most large religious organizations and outreach programs hire and serve more than merely their own congregants, it is unlikely that religious hospitals, schools, colleges, universities, soup kitchens, and charities will qualify for ObamaCare's so-called "religious exemption."

Never mind that Protestants, Catholics, Jews, and Muslims might find various forms of contraception and abortion-inducing drugs immoral or contrary to deeply-held religious beliefs, the federal government announced that it will provide exemptions from this mandate in perhaps the narrowest way possible. It will only give "religious institutions" an exemption if their primary purpose is to "inculcate religious values" and not act merely as a social service or community outreach program.

That's right. Washington agencies will soon begin telling churches, synagogues and other houses of worship which of their ministries to the poor, the sick, the young and the imprisoned are "religious" enough to get an ObamaCare waiver. This despite the fact that the government was never intended to be in the business of "validating" the Gospel or the actions of the faithful.

This assault on religious liberty is shockingly out of touch with the value that Americans place on their religious freedom, the Founding principles of the First Amendment, and a litany of legal precedent that was reaffirmed by a unanimous Supreme Court only a few weeks ago.

The idea that government officials refuse to acknowledge that providing social services is part and parcel of sharing faith and a service unto God is truly frightening. But worse, having missed this fundamental truth, HHS will now decide whether a religious organization, its hierarchy, its laity and its employees are really part of the religious institution itself or just a group of religiously-motivated do-gooders. The fact that the Administration believes it has the legal right to do this reveals a remarkable disdain for constitutional liberty and the law.

The widespread alarm about the new mandate is not limited to religious leaders. Speaker of the House John Boehner joined the rising chorus speaking out against the new HHS mandate, saying it "violates our Constitution" and the protected rights of religious organizations.5

The Speaker is on solid ground. As the Supreme Court made clear in 1943, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matter of opinion or force citizens to confess by word or act their faith therein."6

How removed from the faith-based community must one be to believe that religious organizations only "serve primarily those of the same religious faith?"

Indeed, even the earthly ministry of Jesus would run afoul of the Administration's ham-fisted exemption requirements. After all, upon embarking on his ministry, Jesus said: "The Spirit of the Lord hath anointed me to preach the Gospel to the poor; he hath sent me to heal the brokenhearted, to preach deliverance to the captives, and recovering of sight to the blind, to set at liberty them that are bruised."7 Soup kitchens, schools, homeless shelters, hospitals, and prison assistance programs may appear to HHS to be "mere" social programs, but as the Gospel and the prophet Isaiah reveal, they were a primary and inextricable part of Jesus' mission. Not only that, His ministry was directed to every human soul, not just to a select few.

Unfortunately, under the narrow straits of the mandate's exceptions, religious schools, charities, and health care providers will be forced to choose between the moral dictates of their conscience and creed, or following the President's health care mandate-of-the-month. Such a choice is antithetical to the freedom of religion rooted in our constitutional tradition, and the fundamental protections of the First Amendment. And the Speaker of the House is quite right to question the constitutionality of the rule.

The Birth Control Mandate is Unconstitutional

The President's new mandate falls well outside the Founding generation's view of and constitutional protections accorded to religious freedom in this country. Religious liberty and the right to practice one's religion, to obey one's conscience, and to adhere closely to one's creed free from government interference hold a revered place in our history and canon of constitutional law. Having witnessed the British Crown's encroachments upon religion and religious exercise, America's Founders sought to ensure that the government would neither establish a state-run religion, nor trample the right of a free people to establish their houses of worship as they saw fit. In England, for example, King Henry II had ordered the bishop of Winchester "to hold a free election, but forbid you to elect anyone but Richard my clerk." The Act of Supremacy of 1534 established the British monarch as the head of the Church of England, and the Act in Restraint of Annates authorized him to appoint all of the Church's senior officials. By 1662, the Uniformity Act had limited church ministers only to those who formally agreed to prescribed tenets and pledged to conduct worship services set out in the Book of Common Prayer. Refusing the pledge deprived a minister of any "Spiritual Promotions."8 Familiar with these and other deprivations, our Founders solemnly declared in the Constitution's First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

James Madison, "the leading architect of the religion clauses of the First Amendment,"9 had occasion to practice what he had so often preached regarding religious liberty, and to shed light on the meaning of the Religion Clauses he had helped to secure.10 In 1806, John Carroll, the first Catholic bishop in the United States, asked for the Executive Branch's opinion concerning who should direct the Catholic Church's affairs in the new Louisiana Territory. Madison, then serving as President Jefferson's Secretary of State, conferred with the President and sent word to the bishop that selecting church "functionaries" was "entirely ecclesiastical" and should therefore be left to the Church's judgment. "The 'scrupulous policy of the Constitution in guarding against a political interference with religious affairs,' Madison explained, prevented the Government from rendering an opinion on the 'selection of ecclesiastical individuals.'"11

Since Madison's day, the Religion Clauses have engendered and endured legal controversy, and the courts have not always been perfectly clear or consistent in their First Amendment interpretation. But the Supreme Court has long-recognized "a spirit of freedom for religious organizations, an independence from secular control or manipulation – in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."12 That freedom has historically included both the believer's internal belief and, as the First Amendment states, the outward exercise of that belief – or, what Madison called, "the manner of discharging" one's religion.13 Thus, the First Amendment allows for actions to speak louder than words. The Obama Administration apparently does not share the Court's spirit in these matters. As such, the birth control mandate would be unlikely to survive the judicial scrutiny.

For decades, the Supreme Court has understood the Free Exercise clause to protect religious individuals and organizations from secular laws that would "substantially burden" their free exercise of religion. Courts have applied a multi-part legal test that, first, looks to whether the law in question is a neutral, generally-applicable law, not one specifically aimed at religious expression. Assuming that a law is neutral in its application, courts then ask two related questions: does the law's burden on religion serve a "compelling government interest," and is it "narrowly tailored" or the least restrictive means to furthering the government's interest? In sum, even a neutral law may not substantially burden religious exercise unless that burden is the least restrictive means necessary to serving a compelling government interest.

The birth control mandate does not pass this test.

First, assuming that the new rule is a neutral, generally-applicable regulation, it undoubtedly imposes a substantial burden on the free exercise of religion. On penalty of fine and federal sanction, the birth control mandate demands that many religious institutions do precisely what their religion forbids them from doing. The Catholic Church, to take an obvious example, requires that "human life must be respected and protected absolutely from the moment of conception." A papal encyclical on the subject prohibits "direct interruption of the generative process already begun," "sterilizations," and "any action which either before, at the moment of, or after sexual intercourse, is specially intended to prevent procreation…" But the HHS mandate demands that Catholic schools, charities, and hospitals, for example, must provide their employees with health insurance plans that pay for contraception, sterilization, and even abortifacient drugs such as Plan B – a demand that effectively forces Catholics to violate either their conscience and their religion, or federal law. As Bishop Kevin C. Rhoades observed, "This is really an unprecedented rule from the federal government attempting to force religious institutions – and others, not just institutions but also individuals—to do things that we consider immoral; things that we consider sinful. In this case, that's providing, through our healthcare for our employees, contraception, sterilization, and even drugs that cause early abortion."14

The Administration's contention that the mandate's burden does not violate the Free Exercise clause because the Catholic churches themselves, for example, would likely be exempt from the rule is a legal non-starter. Catholics, like those of many faiths, exercise and manifest their religious beliefs and callings in a variety of ways, including charity work, social service, education, medical outreach and counseling. The Supreme Court has already rejected drawing an artificial distinction between a church-proper and a church's mission, as if acts pursuant to the religious mission were beyond the First Amendment's protection. In 1987, the Court recognized that "[i]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission."15

Second, a neutral rule may substantially burden religious exercise and pass constitutional muster, but only if the government can show that the rule is the least restrictive means to accomplishing a compelling government interest. That is not the case here, however, where the Administration's only interest, according to HHS Secretary Kathleen Sebelius, appears to be in "provid[ing] women with greater access to contraception."16 Hardly compelling. Today, contraception for both men and women is readily available for those who want it at the local drug store, and it is commonly covered or subsidized by health insurance plans across the country. The statement released by HHS even acknowledges, "birth control… is the most commonly taken drug in America by young and middle-aged women."17 There are few, if any, barriers for women who want birth control. Thus, the Administration's alleged interest in "greater access to contraception" essentially means that it wants to provide free contraception, sterilization, and abortifacients – "free" in the sense that some third party pays for it, whether they want to or not. Such an interest is far from meeting the established definition of "compelling."

Of course, even if providing free contraceptives to those who want them was a compelling government interest, the Obama Administration has not employed the least restrictive means to achieving that end. For starters, if the government wants to distribute free birth control, it could do so on the taxpayer's dime, and use tax dollars to pay for birth control to be distributed by federal agencies such as HHS or the FDA. Under this approach, no religious organization would be compelled to violate its creed or conscience to provide pharmaceuticals or procedures that it believes to be immoral – and so it is less restrictive than the President's mandate.

Of course, a conservative Congress or House of Representatives could thwart such an agenda by withholding funds or passing legislation that bars the Administration from spending tax dollars this way. This may be why the President turned to the private sector with an unfunded federal mandate "requiring coverage and by prohibiting cost sharing."18 But even here the Administration could have pursued its interest in providing "greater access to contraception" without requiring the greatest access to contraception. The mandate could have applied only to non-religious health insurance plans, with the exemption for religious institutions made significantly broader so that it included institutions and organizations like schools, universities, and hospitals affiliated with religious organizations – another less restrictive means to a less-than-compelling end.

All of this assumes, however, that the birth control mandate is in fact a neutral and generally-applicable regulation. But neutrality here is not self-evident. As part and parcel of ObamaCare, the legislation and the HHS mandate is replete with waivers, exceptions, and exemptions that may or may not apply for a variety of reasons. The new rule does not apply equally to all health insurance plans, to all insurers, or to all individuals. For example, the mandate applies differently to employers with fewer than 50 employees; it does not apply equally to members of a "health care sharing ministry" that meet certain criteria; nor does it apply to employers who provide "grandfathered" health care plans. Furthermore, HHS has the authority to grant compliance waivers to employers or other insurance plan issuers, releasing them from compliance with the mandate and other provisions of ObamaCare. Ultimately, some secular and religious groups will be burdened with the mandate, and others will not.

Even more damning is the Administration's crabbed attempt to exempt only those employers or religious organizations whose purpose is "the inculcation of religious values." Such an exemption interjects the government agency as arbiter of which religious organizations or ministries "inculcate religious values," and which do not. Unfortunately for the Administration, the Supreme Court has recently shown little patience for such meddling.

Just days before the HHS announcement last month, the Supreme Court handed down a unanimous decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, an employment discrimination case that focused on the "ministerial exception" and the First Amendment rights of religious institutions to appoint their own ministers free from government coercion. The opinion of the Court, authored by Chief Justice Roberts, and the concurring opinions, signed by Justices Thomas, Alito, and Kagan, strongly suggest that religious organizations will continue to enjoy wide latitude in conducting their own affairs and determining for themselves who represents the religion and serves its mission. As the Chief Justice noted, the Court's previous decisions have held "that it is impermissible for the government to contradict a church's determination of who can act as its ministers."19

But this is precisely what the birth control mandate's exemptions set out to do when it draws an artificial distinction between those arms of a church body that "inculcate religious values," and those that do not. That is, under the mandate the government will decide which organizational bodies are "ministers" (or, generally speaking, the equivalent) and which are not. Does a Baptist high school "inculcate religious values"? Does a Lutheran university? What about a Jewish hospital? A Mormon charity? A Catholic soup kitchen paid for by the local parish, but run by and for members of all faiths in the community? Do these, too, not "inculcate religious values"? These are questions for bishops, deacons, pastors, and rabbis – not Washington bureaucrats.

In Hosanna-Tabor, the Court made clear that federal agencies should not be making those decisions, and that in fact the First Amendment does not tolerate such interference. All nine justices agreed:

By forbidding the 'establishment of religion' and guaranteeing the 'free exercise thereof,' the Religion Clauses ensured that the new Federal Government – unlike the English Crown – would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.20

In their concurring opinions, Justices Thomas, Alito, and Kagan made it even clearer that the Court is not likely to read the ministerial exception narrowly, or to further restrict the rights of religious groups to self-select their ministers, their servants, and those who they believe are advancing their religious mission. Justices Alito and Kagan, for instance, opined that "The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith."21 Similarly, Justice Thomas wrote separately to emphasize the point that "[a] religious organization's right to choose its ministers would be hollow, however, if secular courts could second-guess the organization's sincere determination that a given employee is a 'minister' under the organization's theological tenets."22 Indeed, Justice Thomas continued, "[t]he question whether an employee is a minister is itself religious in nature, and the answer will vary widely."23 With resounding support for the protected rights of religious organizations to self-select their ministers, their messengers, and the means by which they pursue their mission and "inculcate their values" free from government interference, the Administration's myopic exemption for "religious institutions" – one that fails to account for religious charities, prison ministries and schools – will be rejected by the courts in light of Hosanna-Tabor.

Conclusion

The Administration's latest health care mandate is an affront to the free exercise of religion and moral duty so long revered and protected in this country. In fact, in light of the Supreme Court's decision in Hosanna-Tabor, one can only wonder at the thinking and motives behind the new rule. Clearly, little consideration was given to the legality of the mandate, suggesting that the motives were entirely political. But the Administration must have anticipated the vocal objections from the religious communities and simply decided that it didn't much care whether those communities would cry foul; it was time for them to get in line with the health care program. The message sent by this new directive is loud and unmistakable: If you're going to be an employer, an insurance provider, or participate in our health care system, you will play by the government's rules and you will provide free contraception. Religious and conscientious objections will be disregarded and dismissed; fines will be assessed.

But the softer, subtler, and more ominous message in the Administration's most recent sermon on health care is this: the religious will confine themselves to serving their own congregations, and "inculcating values" within the confines of their own communities. They will no longer educate the children, preach the Gospel to the poor, heal the brokenhearted, speak deliverance to the captives, give sight to the blind, or liberty to them that are bruised – because that's what Government is anointed to do. Isn't that what Jesus said?

But there is good news. Ultimately this new regulation will not stand. This mandate is far removed from the mainstream of First Amendment rulings, and badly misreads the Constitution and the important role that religious liberty plays in this country. It overlooks our founding history and relies on an erroneous view that caring acts by Americans are primarily secular acts, instead of the sacred acts of compassion and ministry that they often truly are. If the Congress doesn't quickly overturn this regulation, the courts will.

Horace Cooper is a legal commentator and an adjunct fellow at the National Center for Public Policy Research.

Footnotes:

1 Statement of U.S. Department of Health and Human Services Secretary Kathleen Sebelius, January 20, 2012.

2 See, e.g., "HHS Birth Control Mandate Is 'Attack On Our Religious Freedom'," February 1, 2012, available at www.todayscatholicnews.org (Bishop Kevin Rhoades criticizing what he called the Administration's "unconscionable decision" to follow-through with the birth control mandate, calling it "an attack on our religious freedom, attempting to force us to violate our conscience."). See also, Associated Press, "Obama Admin. Defends Birth Control Order As Boehner Calls for Broader Conscience Exception," February 2, 2012, available at www.washingtonpost.com/politics ("Forcing religious institutions to provide insurance coverage for services that are directly in opposition to their moral beliefs is very clearly wrong," said Kristen Day, executive director of Democrats for Life of America.).

3 Statement of U.S. Department of Health and Human Services Secretary Kathleen Sebelius, January 20, 2012.

8 Recounted in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (slip op., at 7).

9 Flast v. Cohen, 392 U.S. 83, 103 (1968).

10 In his famous Memorial and Remonstrance Against Religious Assessments, Madison expounded that "It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society."

11 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (slip op., at 9) (quoting Letter from James Madison to Bishop Carroll (Nov. 20, 1806), reprinted in 20 Records of the American Catholic Historical Society 63-64 (1909)).

13 In his Amendments to the Virginia Declaration of Rights, Madison wrote: "That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it according to the dictates of Conscience." See also, William Penn's exhortation that "liberty of conscience [means] not only a mere liberty of the mind, in believing or disbelieving . . . but the exercise of ourselves in a visible way of worship." (As quoted in The Heritage Guide to the Constitution, ed. Edwin Meese III, 308 (2005)); and John Adams' view that "It is the duty of all men in society, publicly, and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship." John Adams, Thoughts on Government, 1776.

20 Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. ___ (slip op., at 8-9) (2012). The Court went on to explain:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.